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Thursday, 7 November 2013

Last year, the UK government was presented with a preliminary report about an inquiry into British security services' alleged role in the extraordinary rendition and torture of terror suspects. The government said at the time that it would make the report public — but it has never surfaced.

The report was produced as part of the so-called 'Detainee Inquiry', set up by prime minister David Cameron in 2010 to investigate allegations of British security agencies' involvement in the mistreatment of individuals accused of terror offences. Spy agency MI6, for instance, has been blamed for helping to facilitate the abduction and subsequent alleged torture of a Libyan Islamist and his pregnant wife, who were covertly 'rendered' from Bangkok and reportedly taken to a Libyan prison run by the Gaddafi regime in 2004.

Headed by retired judge Sir Peter Gibson, the Detainee Inquiry was supposed to look into these allegations and others. It was scrapped in 2012 amid controversy because the government said that it clashed with ongoing police investigations into some of the same cases. But a preliminary report was produced by the inquiry and sent to the prime minister on 27 June 2012. At the time, the government issued a statement saying that the report focused on "preparatory work to date, highlighting particular themes or issues which might be the subject of further examination." Justice Secretary Ken Clarke said that the government was committed to publishing "as much of this interim report as possible."

Almost 18 months on, however, where is the preliminary report? That is exactly what I have been trying to find out. And the UK government is not returning my emails.

In September, I sent a Freedom of Information Act request seeking a copy of the report to the government's Cabinet Office. Under the FOIA, the government has 20 working days to issue a response. 31 working days have now passed and I have sent three separate emails related to the request. I have received nothing in response — not even an acknowledgement informing me that my request has been received. This means that the government is violating its legal obligations, according to an official I consulted at the Information Commissioner's Office, the public body that enforces access to information legislation in the UK.

I submit quite a lot of FOI requests, and I can't think of another occasion when a government department has flat-out ignored a request in this way. It is very unusual. Normally, the procedure is that you will receive an acknowledgement within a few days. And a couple of weeks later the respective department will either send you the information or refuse to release it, usually citing some flimsy national security secrecy exemption.

Notably, the chap who runs the website Spy Blog has also previously attempted to obtain a copy of the preliminary report. His efforts have so far been stonewalled. But unlike me, Spy Blog has at least been privileged enough to receive responses from the Cabinet Office, most recently in July. The Cabinet refused to disclose the report to the website, claiming that officials were busy "clearing the report for publication" and adding that they expected that it could be published "in the autumn, although no date has been set."

It is not clear why the Cabinet Office has needed almost a year and a half to "clear" a report for public consumption. At best, it looks to me like a case of incompetence and bureaucratic inefficiency; at worst, it is a red herring being deployed to delay the release of controversial information for political convenience. Either way, the delay suggests that there could be some interesting details contained in the report. And the government is running out of excuses to postpone publication. Indeed, under section 22 of the Freedom of Information Act, the government can decline to disclose information requested if it is already intended for future release. However, Ministry of Justice guidance on the Section 22 exemption explicitly states that:

These qualifications recognise that sometimes there will be an overriding public interest in the information
being released prior to the intended publication date. Public authorities should not be able to avoid putting
information in the public domain by adopting unreasonable publication timetables or an 'intention' to publish
where there is little prospect of that happening within a reasonable timescale.

Given the seriousness of the allegations about UK security agencies' role in facilitating extraordinary rendition and torture, there is evidently a very strong public interest case for this preliminary report to be immediately released under the Freedom of Information Act. That is especially true given the inexplicably lengthy delay that we have already had to endure.

It's worth also pointing out that despite the sort of behaviour detailed above, the government continues to audaciously insist it is committed to transparency. Just last week the Cabinet Office was proclaiming "wide-ranging new commitments to bring more of the benefits of transparency into people’s everyday lives." Cabinet minister Francis Maude was quoted as saying that "transparency is an idea whose time has come."

Unfortunately, the section of Maude's own department responsible for implementing transparency does not appear to have received the memo — and is currently flouting the Freedom of Information Act in a case involving the withholding of important information that the public clearly has a right to know.

I have lodged a formal complaint about the Cabinet Office's conduct with the Information Commissioner's Office — so watch this space.

UPDATE, 4 December 2013: Late last month, the Information Commissioner's Office replied to the complaint I filed about the UK government's non-response to my request that it release the rendition/torture report. An official from the ICO said he had contacted the government's Cabinet Office to confirm that my request had been received and to give the government a 10-day deadline to contact me. The ICO reminded the government of its obligations under the Freedom of Information Act and noted that it "may consider taking enforcement action" should similar complaints arise (read the ICO's correspondence here).

However, despite this light reprimand from the ICO, incredibly I've still received no response from the government about the rendition report. The 10-day deadline expired yesterday and I've heard nothing — I've not yet so much as received an acknowlegement that my initial request is being dealt with, even though it was submitted more than two months ago (the government is supposed to respond within 20 working days; it's now been more than 50). This means that the Cabinet Office, which likes to tout its transparency credentials, is not only actively flouting its obligations under the Freedom of Information Act — it has also now failed to act on a formal request made by the authority that enforces the FOIA law, the ICO. Before the end of the week, I'll be following up my complaint with the ICO in the hope that more serious action can be taken. Of course, I'll post further updates here with any new developments in this strange case as and when they arise.

UPDATE, 29 December 2013: The government has released the Detainee Report today; the Guardian reports that it reveals how "MI6 officers were under no obligation to report breaches of the Geneva conventions and turned a 'blind eye' to the torture of detainees in foreign jails, according to the report into Britain's involvement in the rendition of terror suspects." I am still pursuing my complaint against the Cabinet Office for its handling of my FOIA request.

UPDATE, 26 March 2014: In response to my complaint, the Information Commissioner's Office issued a "decision notice" stating that the Cabinet Office breached section 10 of the Freedom of Information Act in ignoring my request. More details here.